HC says buyers can't be charged service tax on payments for such flat if its total value includes land value as well

The Delhi High Court has said that home buyers cannot be charged service tax on payments made towards purchase of under construction apartments from builders if the total value of the apartment includes the land value.

However, service tax can still be levied on preferential location charges (PLC) that builders charge from buyers.

The court also said that if the developer has already collected service tax, buyers would be refunded the amount with 6% rate of interest by the revenue department of the government of India.

Since the amendment introduced by the Finance Act of 2010, the government charges service tax on buyers of apartments in under construction projects.Service tax is levied only on 25% of the total value of the apartment due to a 75%
abatement that is allowed. So at 15% service tax applicable from June 1 this year, the buyer pays service tax of 3.75% on the total value of the apartment.

Vaibhav Gaggar, partner at law firm
Gaggar & Associates, said all home buyers will be entitled to seek a refund of service tax component that has been charged. “Developers in-turn will be entitled to seek a refund from the government,“ he said.

He, however, also said that this order is likely to be challenged in the Supreme Court by the government.

Builders point out that they pay service tax for all services such as design, contracting, legal and others while constructing a housing project. They get an offset for this amount through the service tax collected from buyers. Now they will have to treat it as a cost and pass it on to home buyers.

“If we are not collecting service tax
from buyers, it would mean passing on our service tax burden to buyers,“ said Ashish Sarin, CEO of Gurgaon-based builder Alpha Corp Development.

The court was hearing a case filed by home buyers Suresh Kumar Bansal and Anuj Goyal against the government of
India in which the duo was aggrieved by the le vy of service tax on ser vices `in relation to construction of comp lex'.

They had signed agree ments with builder Set hi Buildwell to buy a group housing project,
apartments in a group housing project, Sethi Group Max Royal, in Sector 76 of Noida.

“We accept the petitioners contention that no service tax under Section 66 of the Act read with Section 65(105)(zzzh) of the Act could be charged in respect of
composite contracts such as the ones entered into by the petitioners with the builder,“ the court said in its order dated June 3.

In their petition, the home buyers said that agreements entered into by them with the builder are for purchase of immovable property and the Parliament does not have the legislative competence to levy service tax on such transaction.

They also said that “the Act and the rules made thereunder do not provide any machinery for computation of value of services, if any, involved in construction of a complex and, therefore, no such tax can be imposed.“

Their petition referred to previous circulars issued by the Central Board of Excise and Customs (CBEC) which, according to them, clarified that the taxable service under clause (zzzh) did not cover builders who were developing and selling immovable property.